End run? Cuccinelli opines on abortion clinics

Planned Parenthood opted to meet more stringent standards when it built this facility on Hydraulic Road. PHOTO BY LISA PROVENCE

It was a busy week for Attorney General Ken Cuccinelli, losing his quest for climate change documents, asking Craigslist to yank adult ads, and issuing an equally controversial legal opinion on abortion.

"It was obviously a political maneuver," says Tarina Keene, director of the state chapter of an abortion rights group. Keene estimates that 17 out of the state's 21 abortion providers could not meet the stricter standards that Cuccinelli's opinion says the state could mandate. Currently, facilities for first-trimester abortions are classified as physician offices–- along with oral surgeons, eye doctors, and urgent care centers.

Keene, who runs NARAL Pro Choice Virginia, protests that other surgeries riskier than abortion, like cosmetic surgery, breast augmentation, and eye surgery, also fall under the "physician offices" category, which is regulated by the Board of Medicine. Outpatient hospitals are under the jurisdiction of the Board of Health.

"Abortion is very well regulated," she says. "This is sort of a slap in the face to the Board of Medicine."

When he was in the General Assembly, Cuccinelli tried–- unsuccessfully–- to pass legislation regulating abortion providers. But in his capacity as AG, when pro-life Delegate Bob Marshall asked for an official opinion on that matter, Cuccinelli determined that yes, the Commonwealth can regulate the facilities that provide first-trimester abortions, as well as the medical personnel who perform them.

"The Attorney General is trying to attempt to generate a regulatory fix to something the legislature has refused to do by law or by statute," says Planned Parenthood's David Nova.

Cuccinelli spokesman Brian Gottstein, however, disagrees and says issuing official opinions is part of the attorney general's job when a state agency or legislator requests it. "Official opinions are not the attorney general's personal opinions, but rather legal opinions," says Gottstein. "Issuing this legal opinion is not an 'end run' around anyone, because the law already says the state can regulate clinics."

Indeed, Planned Parenthood's Nova has long prepared for this moment. When Planned Parenthood constructed new clinics in Roanoke in 2000 and Charlottesville in 2004, they were built to the outpatient hospital specifications "out of concern that one day the legislature would require us to operate as hospitals," explains Nova.

That's not the case for Charlottesville Medical Center for Women, a Commonwealth Drive abortion provider, which declined to comment when contacted by the Hook.

"The Attorney General's opinion states the Commonwealth of Virginia has the legal authority to regulate abortion providers," says Nova. "Planned Parenthood agrees with that. Virginia has the authority and obligation to assure every medical facility operates professionally and safely."

Where he draws the line: If the Board of Health uses the Attorney General's opinion to restrict access to first trimester abortions. "The ruling in and of itself doesn't do anything," says Nova. "It doesn't say the state will do this. It says the state can do this."

John Whitehead at the Rutherford Institute weighs in with support of tightened restrictions on clinics, even if it means first-trimester abortions are more costly and send women to other states. "Though it may seem undesirable to have Virginians crossing state lines to undergo less costly abortions, this concern must be secondary to the health risks associated with the Commonwealth maintaining a laissez-faire attitude toward abortion clinic safety" he writes in a letter to state Senator David Marsden.

Virginia, cautions Whitehead, "must see that its clinics don't become the dreaded 'back alleys.'"

Actual examples of botched or risky abortions in Virginia were not produced and were not a factor in Cuccinelli's opinion. "It does not look at–- nor is it intended to look at–- specific instances of harm caused by a lack of regulation," says Cuccinelli spokesman Gottstein.

The next move is up to Governor Bob McDonnell, who appoints members of the Board of Health, the regulatory body overseeing outpatient hospitals. McDonnell also opposes abortion, but he's bucked Cuccinelli before when the attorney general opined that colleges didn't have the authority to prohibit discrimination based on sexual orientation.

"The Governor and members of the administration are currently evaluating and reviewing this opinion,” says McDonnell press secretary Stacey Johnson.

Over at the Board of Health, local appointee Willis Logan says at the moment, the opinion doesn't change anything, but he acknowledges that questions about the ruling are going to the governor's office, and that McDonnell has the final say on who makes up the Board of Health. Notes Logan, "I serve at the pleasure of the governor."

44 comments

Angry Lincoln September 15th, 2010 | 1:49pm

As Mr. Clinton said: "I respect people with a conservative philosophy," he continued. "This country has been well-served by having two broad traditions within which people can operate. If you have a philosophy, it means you’re generally inclined one way or the other but you’re open to evidence. If you have an ideology, it means everything is determined by dogma and you’re impervious to evidence. Evidence is irrelevant."

I wonder if those who think the VA AG is being overly political hold the same view about Eric Holder? I have this uncanny feeling they see Holder as being simply being objective in his persecution of folks in Arizona, the failure to pursue overtly hostile voting rights violations, etc.

Chris September 3rd, 2010 | 2:52pm

The significant problem I see here is that the AG didn't issue an opinion that covered the other types of procedures that carry as much or more risk; e.g. breast augmentation and cosmetic surgery and other examples in the article above. If the concern is safety of the people of the Commonwealth shouldn't we require strict regulation of all locations at which such procedures are performed?

The narrow nature of the opinion is what tells me it's an agenda based move rather than a legal one. The concern here is making it more difficult for people to obtain a legal medical service rather than to simply make them safer as the AG claims.

Oh, and Rob, I have and you're wrong.

NB24 September 3rd, 2010 | 3:12pm

I am sick and tired of politicians and their personal opinions, especially this guy. Your job is to enforce rules in society and that is why we pay you. Your opinions about abortion, gay marriage, immigration are irrelevant and do not have foundation what so ever. You are of Italian heritage you should be ashamed of yourself. Your ancestors when they settled this country were discriminated against by other settlers and were always look down upon as second class citizens. Now you are doing the same with you views about immigration,gay marriage, Muslims, and everyone that your ignorant mind can not understand. You see CUCC,(you should change your last name it fits better) you are afraid because you do not understand. Its perfectly natural, usually the weak ones create a lot of noise thats probably why your wife is jumping ship.

osama September 13th, 2010 | 11:03am

try and have a conversation and/or debate without bringing god into it. come on ”Š just try it. i double dare you.
God continues to prove lack of existence.

idontknowanythingjustaskmywife September 3rd, 2010 | 6:42am

I think This Guy Works For" Beck" and "The Hockey Mom "on the side .

Yes September 3rd, 2010 | 9:32am

I suppose if the issue were breast implants and the Legislator asked if the Board could impose stricter requirments to protect those patients and the AG said NO, the naysayers would say he obviously didn’t care about protecting women.
***
The question isn't having the Board of Medicine regulate abortions or implants. It's having Cucc place the regulation of abortions under the Board of Health as Attorney General, after he tried and fail to do so in the General Assembly.

Oh, and the legislator in question is on record as saying that children born with birth defects to women who had abortions are a special punishment from God.

Drowning September 3rd, 2010 | 9:38am

Cucinnelli makes the case for retroactive abortion.

What is this dude afraid of?? Next he will want women wearing burkas.

Yes September 3rd, 2010 | 9:43am

Here's the explanation from the Washington Post:

"For at least eight years, anti-abortion legislators -- including Cuccinelli when he was a senator -- supported bills that sought to treat abortion clinics as ambulatory surgery centers and require that they meet hospital-type regulations. They failed year after year.

The Board of Medicine regulates the doctors who perform abortions, but the clinics undergo fewer regulations.

Critics of Cuccinelli, who opposes abortion, accuse him of issuing the opinion after he was unable to get the bills passed in a divided legislature. "He's trying to do an end run around the General Assembly," said Del. David L. Englin (D-Alexandria), who fought the bill in the House. "He's trying to create law, and the Virginia Constitution doesn't give him that authority." "

***
Cucc isn't interpreting a law here. He's trying to enact policy change under the guise of a legal opinion.

Old Timer September 3rd, 2010 | 9:50am

No, I have never seen the abortion clinic, but if it's as you say, it really just says how people still want to deny women in such a position from getting reasonable health care. I don't like abortion, but I think if one feels the necessity they should have access to safe clean facilities.

I would like to believe Cucc wants to provide that, but of course I know he doesn't.

Yes September 3rd, 2010 | 7:17pm

Cucc has like 7 kids. His wife homeschools them through sixth grade and then they send them to Catholic schools.

Albeboy September 3rd, 2010 | 9:19am

Creosote: We elect AGs... we don't elect judges.

meanwhile.... September 3rd, 2010 | 9:25am

I'm pro-life but I'm not sure how one can make a legal argument that the Attorney General doesn't have the right to issue such an opinion. It would be up to the legislature to pass the law imposing stricter regulations, and then it would be up to a judge to determine whether or not the law is constitutional.

There's not much controversy here. Yes, a different AG would have a different opinion but, as Albeboy points out, this is the AG that was elected.

And of course it's all a political exercise. The AG is on record indicating "the state could mandate" stricter regulations. That does not mean that these regulations actually exist.

The Wise Allen Iverson September 7th, 2010 | 8:11am

Cucci needs to focus his energy on cleaning up the crime in VA as in Richmond, and drugs all over your World Class City. He is simply all political which is what the repugs will deny they do, but always do.

People that are Pro-War and Pro-Life are too emotional about issues and evade logic.

Kevin September 13th, 2010 | 1:09pm

god has had Himself cryogenically frozen until such time as the rest of the planet's people catch up with Virginians in the smarts department.

They're cattle, feed 'em September 7th, 2010 | 11:22pm

I am unaware of any abortion clinic on Commonwealth Dr. If what is being refered to is the Planned Parenthood office, then it is on Rio Road. It is as plain as day for all to see and was never a house. It was built for Planned Parenthood.

Yes September 3rd, 2010 | 3:31am

As we saw with the Mann lawsuit, Cucc has absolutely no respect for the rule of law, regularly overstepping clear legal boundaries.

Bob September 3rd, 2010 | 9:25pm

VA has an awesome AG. It makes me want to move back the VA even more than I did before. Right or wrong, he has the guts to take a position on an issue and not worry about what people think.

Since we have some quoting Mr. Jefferson, here's one to add to the mix:

Ã¢â?¬Å?God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift from God? That they are not to be violated but with His wrath? Indeed I tremble for my country when I reflect that God is just, and that His justice cannot sleep forever.” (excerpts are inscribed on the walls of the Jefferson Memorial in the nations capital) [Source: Merrill . D. Peterson, ed., Jefferson Writings, (New York: Literary Classics of the United States, Inc., 1984), Vol. IV, p. 289. From Jefferson’s Notes on the State of Virginia, Query XVIII, 1781.]

MommaT September 3rd, 2010 | 11:02am

Wanting to make abortion facilities safer for women is not a bad thing. Now, if we could just make them safer for the unborn babies.

meanwhile.... September 3rd, 2010 | 10:22am

couple things, @Yes:

Is the "Board of Medicine" the same thing as the "Board of Health"? You talk about the "Board of Medicine" and the article talks about the "Board of Health". You seem to be implying they are the same thing but it is unclear.

From the hook article:

Ã¢â?¬Å?The Attorney General’s opinion states the Commonwealth of Virginia has the legal authority to regulate abortion providers,” says Nova. Ã¢â?¬Å?Planned Parenthood agrees with that. Virginia has the authority and obligation to assure every medical facility operates professionally and safely.”

So if Planned Parenthood, as represented by David Nova agrees with the Attorney General's opinion, what is the problem, exactly?

Let me also state besides the fact that I am pro-choice that I think Cuccinelli is an embarrassment. But is a knee-jerk reaction to anything related to abortion truly necessary?

Maybe it is, I don't know. Maybe the AG needs to be put on notice that anything he does in regards to this issue will be contested.

Is that the aim here? Because on the face of it, this opinion does not seem controversial, no matter what the washington post or Cuccinelli's critics say.

dflhoo September 3rd, 2010 | 10:50pm

Sounds like to me the AG & Delegate "Bob" put their heads together and the AG asked Bob to pose the "question". AG answered the question & was only rendering an opinion. Of course we all know the AG & "Bob" think alike on this topic (as well as many others) so the answer was not unexpected. "How convenient" to quote SNL Church Lady from years gone by. Just my take on what happened & I could be way off base....

meanwhile... September 4th, 2010 | 10:11am

@Yes, yes, you are right. I reread the article and noticed the differentiation. My comments are riddled with errors..... *sigh*

Yes September 3rd, 2010 | 9:33pm

It's sad to see that obvious political pandering is mistaken for conviction, unless disregard for rule of law by an attention-seeking attorney general is now considered to be conviction.

Also, Jefferson is horribly overrated. Haven't you read Hofstadter?

Yes September 3rd, 2010 | 9:39pm

Is the Ã¢â?¬Å?Board of Medicine” the same thing as the Ã¢â?¬Å?Board of Health”? You talk about the Ã¢â?¬Å?Board of Medicine” and the article talks about the Ã¢â?¬Å?Board of Health”. You seem to be implying they are the same thing but it is unclear.
***
Both I and the article differentiate between the Board of Medicine, which currently regulates abortion, and the Board of Health, which Cucc wants to regulate abortion.

They're cattle, feed 'em September 7th, 2010 | 11:28pm

How different would our world be if the children who have been cast aside or made to pay for their parent's misery got the same level of attention and devotion that unborn fetuses get? Perhaps those of you who are so worried about the souls yet to arrive in this world should expend some of your fervor on the ones already here and suffering.

The Wise Allen Iverson September 8th, 2010 | 9:22am

@ They're cattle, feed 'em
I suspect that would make to much sense, you know caring about the already living. Also those kids that need to be adopted tend to be poor. Well "everything happens for a reason, those poor kids born to parents on drugs, what a shame, shame on those parents." They are their problem, but yes unborn fetuses sure are.

The significant problem I see here is that the AG didn’t issue an opinion that covered the other types of procedures that carry as much or more risk; e.g. breast augmentation and cosmetic surgery and other examples in the article above. If the concern is safety of the people of the Commonwealth shouldn’t we require strict regulation of all locations at which such procedures are performed?
***
Exactly. I'm sure that everyone wants abortions, oral surgery, and plastic surgery to be performed in the appropriate environment, but an interest in general health did not prompt the question from Bob Marshall.

Rob September 3rd, 2010 | 9:09am

Have any of you ever scene the abortion "clinic" on Commonwealth Dr? It's just a house with bedrooms used as "surgical rooms" and it's not very clean inside either.

Creosote September 3rd, 2010 | 9:12am

@Leonora writes: "Cucinnelli is one politician who actually stands for something and is standing in the face of adversity."

Umm, that would be fine if he were still in the state legislature. But he is the attorney general of Virginia, the chief legal official for the commonwealth. As such, his primary responsibility is to provide legal representation to the state and to defend the constitutionality of its laws. Not to push a personal religio-political agenda.

You (generic you) can't have it both ways: complain about "activist [liberal] judges" and be cat-content with an activist [conservative] attorney general.

Lenora September 3rd, 2010 | 7:04am

Cucinnelli is one politician who actually stands for something and is standing in the face of adversity. If only the rest of the politicians would be so brave and have a backbone!

very old timer September 3rd, 2010 | 7:12am

I suppose if the issue were breast implants and the Legislator asked if the Board could impose stricter requirments to protect those patients and the AG said NO, the naysayers would say he obviously didn't care about protecting women.

Of courst the board of health has the right to regulate what level of surgery can be done in a Doctors office, as they should.

If they try and tighten the noose around abortionists then the courts will protect them from unreasonable impediments.

Mr. Softee September 3rd, 2010 | 8:21am

"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State."
Thomas Jefferson

local40 September 3rd, 2010 | 6:18pm

cuccinelli should get a life....man, i would hate to be one of his kids...if he has any......or even one of his friends.....

Empty can September 4th, 2010 | 8:12am

From the City of Richmond. What the state government uses to measure scientific validity and decide on funding. If watched repeatedly it does explain everything:

I think that Holder's argument about federal supremacy in immigration matters with regard to Arizona law is somewhat flimsy but I'm not aware of any "persecution of folks in Arizona."

Yes September 4th, 2010 | 8:36am

What "overtly hostile voting rights violations" haven't been pursued? You aren't actually talking about the New Black Panthers case, are you? Here's the view of a conservative on the case, published in "National Review":

"Forget about the New Black Panther Party case; it is very small potatoes. Perhaps the Panthers should have been prosecuted under section 11 (b) of the Voting Rights Act for their actions of November 2008, but the legal standards that must be met to prove voter intimidation Ã¢â?¬â? the charge Ã¢â?¬â? are very high.

In the 45 years since the act was passed, there have been a total of three successful prosecutions. The incident involved only two Panthers at a single majority-black precinct in Philadelphia. So far Ã¢â?¬â? after months of hearings, testimony and investigation Ã¢â?¬â? no one has produced actual evidence that any voters were too scared to cast their ballots. Too much overheated rhetoric filled with insinuations and unsubstantiated charges has been devoted to this case."

@ Common Sense - until it is your wife, daughter, mother, family or friend who is raped and pregnant because of it.

get a brain.

God September 4th, 2010 | 10:48pm

Don't we have enough unwanted people? I know my people on the right are secretly looking for a reason to jump on the abortion bandwagon. Look at it this way: those human beings that normally would have been aborted probably would end up as dead-drains on the taxpayers in one way or another; don't we oppose welfare/socialism? It's equally likely that these folk would be heathens and therefore doomed to spend eternity roasting in the fiery pit. Let's save 'em the trouble. After all compassion is a virtue. Wahoowa?